R v Millevoi

[2021] NSWDC 578

District Court

New South Wales

Medium Neutral Citation:

R v Millevoi [2021] NSWDC 578

Hearing dates:

24 September 2021
27 September 2021
27 October 2021

Date of orders:

27 October 2021

Decision date:

27 October 2021

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

See Orders

Catchwords:

CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug

CRIME — Drug offences — Commonwealth offences — Traffic controlled drug

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 16A(2)(g), 16C, 17A, 20AB(1AA)(ix), 20(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 53A, 66

Criminal Code Act 1995 (Cth) ss 5.2; 5.3; 5.4, 302.2(1), 307.1(1)

Judiciary Act 1903 (Cth) s 68

Cases Cited:

Director of Public Prosecutions (Cth) v Gregory – (2011) 34 VR 1

Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50

Hili v The Queen (2010) 242 CLR 520

Parente v R (2017) 96 NSWLR 633

R v Coleman (1990) 47 A Crim R 306

R v Fangaloka [2019] NSWCCA 173

R v Le; R v Chanthavong [2020] NSWDC 625

R v Nguyen; R v Pham [2010] NSWCCA 238

R v Nozhat (No 2) [2019] ACTSC 81

R v Nozhat (No 3) [2019] ATSCC 160,

R v Ponfield; R v Scott; R v Ryan; and R v Johnson (1991) 48 NSWLR 327

R v Zamagias [2002] NSWCCA 17

Robertson v R [2017] NSWCCA 205

Smith v The Queen (2017) CLR 291

TheQueen v Pham (2015) 256 CLR 550

Wong v The Queen (2001) CLR 584

Xiao v R (2018) 96 NSWLR 1

Category:

Principal judgment

Parties:

Regina
Toni Renee Millevoi, Offender

Representation:

Counsel:
Ms New, Counsel for the Crown
Mr Brady SC, Counsel for the Offender

Solicitors:
Mr Macken, Commonwealth DPP
Mr Sant, Solicitor for the Offender

File Number(s):

2019/00065021

Judgment

THE OFFENCES

1. The offender who was born on 6 February 1971 stands for sentence on the following two counts after entering pleas of guilty on 23 April 2021:

1. Between about 6 February 2019 and 24 February 2019 at Cobbitty and elsewhere in the State of New South Wales, imported a substance, the substance being a border controlled drug, namely gamma-butyrolactone (GBL), and the quantity imported being a commercial quantity: s 307.1(1) of the Criminal Code Act 1995 (Cth) (Law Part Code: 58454); and

2. Between about 8 February 2019 and 27 February 2019 at Cobbitty and elsewhere in the State of New South Wales, trafficked in a substance, the substance being a controlled drug, namely gamma-butyrolactone (GBL), and the quantity trafficked being a commercial quantity: s 302.2 (1) of the Criminal Code Act 1995 (Cth) (law part code: 58432).

2. The pure Count 1 quantity is 7.29kg. The pure Count 2 quantity is 21.29kg sold and 19.54 kg possessed with intention of selling any of it.

3. The maximum penalty for each offence is Life Imprisonment and/or fine of 7500 Commonwealth penalty units ($1,575,000).

4. Following her arrest on 27 February 2019, the offender spent 22 days in custody and has since that time been released on bail conditional upon her reporting to police 3 times per week and she not contact her overseas suppliers FB Trading and Eyemee. Over time her bail conditions were gradually reduced to report 1 time per week. She has complied with the conditions of her bail, which is now of 2 years, 7 months and 8 days duration.

INTRODUCTION

5. At the commencement of the case on sentence, Counsel for the Crown properly joined in observing, that the offending was “out of the norm” of the spectrum for this type of offending.

6. I adopt the parties’ characterisation of the offending as “unique” for offending within the spectrum of offending of each Count, as an appropriate way to introduce this judgment on sentence.

7. Of the 2 offences, the Crown identifies the trafficking as the leading Count.

8. The importation Count dates from 6 February until 24 February 2019 and the trafficking Count dates from 8 February until the offender’s arrest on 27 February 2019. The earlier date of 6 February 2019 follows the offender’s discussion on 5 February 2019 with an undercover New South Wales police force operative “Mel” who, on attendance at the offender’s home, from which she conducted a wholesale/retail beauty salon product supply business, when discussing purchase of false eyelash glue removal product, informed the offender that it included the ingredient “G”. Prior to that conversation, the offender, as a practising beautician, had since 2012 in her legitimate business imported and sold liquid and gel versions of the false eyelash glue remover. As the Crown put it: “This was a product that [the offender] sold for a legitimate purpose”. The Australian Federal Police had on 22 December 2016 issued a Media Release referring to the fact of GBL being in eyelash remover made in China and referred to beauticians, (to use the words of the Release) “unwittingly engaging in illegal importations.” However, the Crown concedes that the offender had not necessarily come across that Release.

9. The Crown fairly put both Counts of offending in the context of the offender’s operation of a legitimate business for seven years, with an honest and reasonable belief in the legality of her trading and without any awareness of the ingredient GBL in the products she imported and sold; and that from 6 February 2019 onwards, “this offender has stumbled” into the offending.

AGREED FACTS

10. Because of the uniqueness of the circumstances of the offending, and particularly because the parties identified the assessment of objective seriousness as the real issue, it is appropriate that I include in this judgement the whole of the agreed facts, and I do so below:

Background to the Offender’s business

1. During the investigation period from December 2018 to 27 February 2019, Toni Renee MILLEVOI (DOB 06/02/1971) (‘the Offender’) conducted a legitimately registered business which involved operating a beauty salon and distributing and reselling beauty products including through an online website. The business operated under the name ‘Masses of Lashes’, also trading under the name ‘Cocoa Being’. The business was conducted out of her residence at 19 and 19a Bibb Avenue, Cobbitty, New South Wales 2570, and granny flat adjacent to the same premises.

2. The business ‘Cocoa Being’ has been a registered business operating since 28 March 2012. ‘Masses of Lashes’ has been registered and operating since January 2014. These were legitimate businesses of the offenders. ‘Masses of Lashes’ still trades as a legitimate business distributing beauty products.

Background to the offending

3. Amongst the products sold by the Offender, as part of her business, were the following:

a. FB Liquid Remover (the Liquid); and

b. Maxi Gel Remover (the Gel).

4. The Liquid and the Gel were sold online through the website “massesoflashes.com.au”. The Liquid was listed as the best-selling product and the Gel was listed as the fourth best-selling product. Both products had a sale price of $12.85 plus GST.

5. The Liquid and the Gel both contained the border-controlled drug Gamma-butyrolactone (GBL) - the purities of GBL in each product are set out below in the agreed facts when detailing the facts for each of the offences.

6. The Offender had no permit to lawfully import or traffic the substance gamma-butyrolactone.

7. Prior to the offending, the Offender had imported and supplied the Liquid and the Gel, amongst other beauty products, for a number of years. However, some months before February 2019, the Offender noticed an increase in online purchases from her of the Liquid and Gel.

8. The offender ordered the Liquid from a business based in South Korea known as ‘Freaks Bunker [FB] Trading’ of Choong Min Ro, 10 Gil Graden Five Tools Songpa –Gu 05840 Korea (FB Trading). The offender ordered the Gel from a business in South Korea; ‘Eyemee The Beauty Co Limited’, 111-6 Neunganmal 1-gil, Seocho-gu, South Korea (Eyemee).

9. The contract that the Offender had with ‘Eyemee’ also specified the Offender’s obligation to ensure the lawfulness of the products before placing an order, as follows:

“15. Legal Responsibility

…Distributer must be fully responsible with law or regulation related with products in the territory. Therefore, Distributor must check all necessary legal points of the products in the territory before placing order”.

10. The Liquid and the Gel were also used for procedures carried out in the salon relating to the removal of false eyelashes. Only little amounts of the Liquid or Gel were required, and a single bottle of approximately 10ml would last for approximately one to two weeks. A full removal of eyelash extensions would require approximately 3.4 grams.

11. A contract between the Offender and a representative of the company Eyemee dated 15 April 2015 listed the Offender as the exclusive distributor in Australia for Eyemee; the company that supplied products under the label ‘Max2originale’ lash products. In addition to the Liquid and the Gel the Offender sold numerous beauty products through her website including Max2 mascara, Max2 tonic, Max2 sealant, Max2 maxiguard, various application tools, eyelash extensions and various eyelash adhesives.

Australian Federal Police and Australian Border Force Press release

12. On 22 December 2016 the Australian Federal Police and Australian Border Force published a joint media release (the Joint Release) which stated:

Thursday, 22 December 2016, Publish time: 3:01pm

This is a joint media release between the Australian Federal Police and Australian Border Force.

The Australian Federal Police (AFP) and Australian Border Force (ABF) are today issuing a warning to the public about an alarming method of illegal importations of gamma-butyrolactone (GBL), commonly used to manufacture the dangerous drug known as ‘Fantasy’.

Police and border agencies are seriously concerned about the methods criminals are using to attempt to import this border-controlled drug, also known as ‘coma in a bottle’, which has been found concealed within commercial beauty products imported from China.

In the last month alone four seizures, each containing five litres of the drug was found in containers purporting to be gel used to remove make-up glue. The drug is being unwittingly purchased by the legitimate beauty industry potentially putting the health of consumers at risk.

AFP acting Assistant Commissioner Chris Sheehan today stressed if beauty salons or members of the public have any concerns or adverse reactions to any beauty product, they should seek immediate medical advice.

“The potential harm with using these misleading products, many of which are not labelled, is particularly high in products used for the removal of imitation eye lashes,” acting Assistant Commissioner Sheehan said.

“When ingested this dangerous substance is capable of ruining lives in a single incident.”

13. On 7 February 2019, an intercepted telephone conversation captured the Offender referring to and reading out parts of the Joint Release to her sister Heidi Wickham on 7 February 2019. ^[1] This conversation commenced at 12:25pm.

1. Relevant transcripts of this are set out in a separate document to be tendered at the sentence hearing.

14. The website of the Offender’s business stated that an ingredient of the Liquid and the Gel was Butyrolactone.

15. The Material Data Safety Sheet (‘MSDS’) provided by FB Trading to the Offender set out the chemical mixture of the substance being imported and that it contained 91% Gamma-butyrolactone as well as describing the products as toxic and harmful. ^[2] The product description materials the Offender received from FB Trading and Eymee specified that the Liquid and Gels contained Butyrolactone/Gamma-butyrolactone.

2. Specifically, the Material Data Safety Sheet noted the substance contained ‘Gamma-butyrolactone 91%, Glycerin 3%, Aloe 3%, and Vitamin E 3%’.

16. Labels on the bottles showed that one of the ingredients was Butyrolactone. There was no mention of ‘Gamma-butyrolactone’ on the bottles.

Telephone call to Narellan Police Station

17. Call records obtained by NSW Police show that on 7 November 2018 at 1:57pm a telephone call was made from the Offender’s mobile phone number to the Narellan Police Station in NSW. The duration of this telephone call was 10 minutes and 19 seconds.

Sequence Two – Traffic in a commercial quantity of controlled drug, contrary to s302.2(1) Criminal Code (Cth)

18. The Offender trafficked in a commercial quantity of GBL in that the Offender:

a. Sold the substance (relying on the definition of “traffic” at s. 302.1(1)(a) of the Criminal Code Act (Cth)); and

b. Possessed the substance with the intention of selling any of it (relying on the definition of “traffic” at s. 302.1(1)(e) of the Criminal Code Act (Cth)).

Offender sold the substance

19. During the period 24 December 2018 to 26 February 2019, the Offender received orders for the Liquid from a number of customers. Many of the customers were based in the Gold Coast or South-East Queensland. ^[3]

3. Daniel Robert, Southport Queensland; Taylor Wilson, Surfers Paradise; Jessica Ashley, Gold Coast; Eska J Lashes, Ashmore Queensland; Janice Harris, Highland Park, Queensland; Tegan Curtis, Paradise Point, Queensland; Jamie (Joshua J Glamour Beauty Therapy 23 Hasemann Crescent, Upper Coomera Queensland); Nathan Green, Privet 2/2 Pontoon Place Apartment, Varsity Lakes, Queensland; Gavin Dodd, Miami, Queensland; Taylah Jane, Benowna Queensland; Angelina Evans, Nerang Queensland; Angela Evans, Nerang, Queensland and Alishia Browning, West End, Queensland.

20. Set out below is a schedule showing orders from one Gold Coast based customer, Ricky Bobby, for the Liquid during the period from 2 January 2019 to 24 February 2019:

Name	Date	Quantity	Payment	No of bottles	Invoice no
Orders outside the charge period
Ricky Bobby Nails and lashes and beyond Gold Coast Qld 4215	2 January 2019	9 kilograms	$5,957	600	2113
Ricky Bobby Nails and lashes and beyond Gold Coast Qld 4215	7 January 2019	12 kilograms	$7,936	800	2135
Nails and lashes and beyond 1/11 Catherine Court Gold Coast Qld 4215	17 January 2019	6 kilograms	$3,968	400	2180
Nails and lashes and beyond 1/11 Catherine Court Gold Coast Qld 4215	25 January 2019	6 kilograms	$3,968	400	2213
1/11 Catherine Court Gold Coast Qld 4215	31 January 2019	6 kilograms	$3,968	400	2243
Orders within the charge period
Nails and Lashes and Beyond 1/11 Catherine Court Gold Coast Qld 4215	19 February 2019	3 kilograms	$3,315	200	2292
Nails and Lashes and Beyond 1/11 Catherine Court Gold Coast Qld 4215	24 February 2019	3 kilograms	$3,315	200	2317
Total within the charge period	6 kilograms	$6,630	400
Total	45 kilograms	$32,427	3,000

21. NSW Police conducted controlled operations which involved the purchase of the Liquid and Gel from the Offender. Set out below is a schedule showing the date of each controlled operation, the amount purchased, and the payment:

Date	Amount	Payment
23 January 2019	200 bottles liquid (3kg)	$1,969
30 January 2019	200 bottles liquid (3kg)	$1,969
6 February 2019 [Note: this is within the charge period of the ‘import’ but not trafficking charge]	38 bottles liquid 100 bottles gel (2,046 grams)	$1,950
Controlled deliveries within the charge period:
19 February 2019	200 bottles liquid (3kg)	$3,300
27 February 2019	400 bottles liquid (3kg)	$6,600
Totals	$15,788

22. The Offender processed orders online and received payments from the sales by way of bank transfer to an account held at the Australian and New Zealand Banking Group (ANZ) in the name of ‘Masses of Lashes’.

23. The Offender issued a tax invoice for each sale. GST was payable on each sale and was declared by the Offender. The Offender offered a discount from $12.85 to $8.95 a bottle for purchases over 200 bottles.

24. Set out below is a schedule showing supplies of the Liquid made by the Offender during the period from 9 February 2019 to 27 February 2019 which are relied on for the offence of trafficking. The schedule shows the name of the person, the date, the quantity in kilograms, the number of bottles and the invoice reference:

Name	Date	Quantity	Payment [4]	Bottles	Invoice no
Alishia Browning End 8/817 Bank Street Qld 4101	9 February 2019	0.750 kilograms	$721.75	50	2276
Kathy Daley Opal Nails 45a 64 Gilston Road Nerang Qld 4211	18 February 2019	1.05 kilograms	$1,170	70	2272
Ricky Bobby Nails and Lashes and Beyond 1/11 Catherine Court Gold Coast Qld 4215 Referred to also in the table above	19 February 2019	3 kilograms	$3,315	200	2292
Controlled Operative Referred to also in the table above	19 February 2019	3 kilograms	$3,300	200	N/A
Andrew Rudd Ruddsmarine	20 February 2019	2.01 kilograms	$2,226	134	2298
Alishia Browning End 8/817 Bank Street Qld 4101	22 February 2019	0.750 kilograms	$840.00	50	2309
Ricky Bobby Nails and Lashes and Beyond 1/11 Catherine Court Gold Coast Qld 4215 Referred to also in the table above	24 February 2019	3 kilograms	$3,315	200	2317
Tegan Curtis Parcel locker Paradise Point Qld 4216	24 February 2019	2.325 kilograms	$2,205.93	155	2315
Alishia Browning Fabulous lashes West End 8/817 Bank Street Qld 4101	26 February 2019	1.5 kilograms	$1,665	100	2319
Controlled Operative Referred to also in the table above	27 February 2019	6 kilograms	$6,600	400	N/A
Totals	23.385 kilograms	1,559

4. The payment details are confirmed on the invoices seized.

25. On 31 January 2019, a shipment from FB Trading to Masses of Lashes of 5 cardboard boxes containing the Liquid was stopped at Customs and tested. ^[5] A sample from one of the bottles tested positive for GBL with a purity of 91%. The label on each of products stated that the ingredients contained Butyrolactone, and the invoices seized under warrant from the Offender in relation to her purchasing and importation of the Liquid and the Gel stated that the Liquid contained 91% pure GBL.

5. See statement of Australian Border Force officer Shaun Lianne dated 6 March 2019

26. From 8 February 2019 to 27 February 2019 the pure quantity of the GBL trafficked by the Offender by way of being sold was 21.28 kilograms. ^[6]

6. 23.385 x 0.91 purity = 21.280 kilograms

Offender possessed the substance with the intention of selling any of it

27. On 27 February 2019, during the execution of the search warrant at the Offender’s premises, Police found and seized 1,432 x 15 gram bottles of the Liquid in the Offender’s garage.

28. Police also found and seized invoices issued by FB Trading. Those invoices were addressed to the PO Box address: PO Box 844 Narellan NSW 2567. On 11 February 2019, the Offender changed the delivery address to this PO Box address. Previously, shipments from FB Trading were sent to the Offender’s home address. The Offender changed the delivery address to this PO Box address as the shipment from FB Trading that was seized by Customs was addressed to her street address. The invoices seized state that GBL is an ingredient of the Liquid. They also state that it comprises 91% of the Liquid. ^[7]

7. The remaining 9% is made up of Glycerin, Aloe and Vitamin E

29. The total pure weight of the GBL in the 1,432 bottles was 19.54 kilograms. ⁸

30. Of the 1,432 bottles possessed, it is agreed that a portion of the Liquid was intended to be sold by the offender to beauty businesses for legitimate use as well as to be used in beauty procedures conducted by the offender’s own salon business. The exact portion of the 1,432 bottles that were possessed with the intention of selling to persons who were likely to have intended to use the product illegitimately [that is, not as a beauty product] is unknown.

31. Business records seized from the Offender’s premises under warrant showed that during the relevant period the Offender did not increase the volume of the Liquid in her purchases, although did increase the frequency of which the Liquid was imported.

Telephone intercepted discussions

32. At all times, the Offender used a mobile phone service subscribed for in her name (0404 250 500). The records show that this number had been subscribed for in her name since 17 March 2015. A telephone intercept warrant was granted over this service from 21 December 2018 (the TI warrant).

33. Relevant transcripts of communications captured under TI warrant are set out in a separate agreed document (“Extracted Telephone Intercepts (‘TI’) Transcripts Document”) to be tendered in an agreed tender bundle.

34. The Extracted TI Transcripts Document sets out the surrounding circumstances of the level of awareness of the Offender. In particular, with reference to the Indictment particulars, the Extracted TI Transcripts Document sets out communications:

a. The Offender had with an undercover NSW Police Officer in relation to a controlled purchase;

b. The Offender had with her friends or colleagues on 6 and 7 February 2019 suggesting that the Offender had researched and read about the Liquid and found a Joint press release from the Australian Federal Police and Australian Border Force regarding eyelash remover glue containing an unlawful controlled drug and that importing it was illegal;

c. The Offender had with her friends and family in which they represented to her their view that she was doing nothing wrong; and

d. The Offender had with suppliers and other importers after 7 February 2019 setting out her concerns about what she had done and representations about the legitimacy of her business and that the importation of the liquid was a part of that.

Sequence One – Import commercial quantity of border-controlled drug, contrary to s307.1(1) of the Criminal Code (Cth)

35. On 24 February 2019, a shipment from Eyemee to Masses of Lashes (addressed to 19 Bibb Avenue Cobbitty NSW 2570) of 4 cardboard boxes was stopped at Customs. Two of the boxes contained 600 bottles of the Gel each containing 15 grams (9 kilograms total). A sample from one of the bottles tested positive for GBL with a purity of 81%. ^[8]

8. See Certificate issued by Brendan William Trotter of the National Measurement Institute dated 13 August 2019.

36. Documents seized under warrant on 27 February 2019 from the Offender’s residence and business show that:

a. On 6 February 2019 at 6:19pm, the Offender sent an email to Eyemee ordering 600 bottles of the Gel; and

b. On 12 February 2019, the Offender paid the invoice of $5,175.32 for the 600 bottles of the Gel (which included other items); ^[9] and

9. Statement for account in the name of Masses of Lashes Pty Limited held at the ANZ with account number 012 514 4709 15301 for the period from 15 January 2019 to 15 February 2019.

c. Eyemee produced a product information document which stated that the Gel contained 80% Butrylactone.

37. The pure quantity of the GBL contained in the shipment was 7.29 kilograms.

39. It is agreed that the Offender had not increased the volume of the Gel in her purchases during the relevant period when compared to her earlier imports, although did increase the frequency of which the Gel was imported.

Search Warrant

39. On 27 February 2019, following the purchase of the Liquid pursuant to the controlled operation on that same date, NSW Police officers executed the search warrant at the Offender’s premises and her salon (19 Bibb Avenue, and 19a Bibb Avenue, Cobbitty, NSW).

40. At the address the Offender was arrested and cautioned.

41. When asked if there were any “…GBL removers throughout the house?” the Offender replied, “I don’t know what GBL’s in, I got glue, eyelash glue”.

42. The Offender participated in a Record of Interview wherein she exercised her right to silence.

Antecedents

43. The Offender is not criminally recorded and has two dependent children.

11. The document entitled “Extracted Telephone Intercept (“TI”) Transcripts Document” referred to in the Agreed Facts is included in the Crown bundle (Exhibit A). Without objection the offender tended extracts of her conversation with her solicitor on 27 February 2019 at 9:18 AM. That solicitor contact preceded her discovery, at the time of arrest later that day, that she was the subject of police investigation. The telephone intercept material provides contemporaneous and objective evidence of the plaintiff’s state of mind in regard to her trading during the period of offending identified in the Indictment.

FURTHER FACTS NOT CONTESTED

12. There is no real issue as to the following further facts:

• the offender imported a range of beauty products of which the Liquid and the Gel, were only 2;

• all transactions in the offenders legitimate business, including the transactions the subject of Accounts 1 and 2, were conducted by the offender in a regular fashion for an importer and distributor of beautician products including maintaining all normal business records for GST and ATO compliance and invoices. All payments were made by bank deposit into the offenders business account;

• the only sale paid for in cash in her trading was to the undercover police operative Mel who having been offered to pay by bank transfer or credit card, insisted on paying cash. The sale was entered in the Xero business program, invoiced and receipted and GST paid;

• during the offending and the intercepted telephone conversations the offender’s judgement was significantly affected by alcohol intoxication (Crown concession T70.50 to T71.01);

• GBL is an ingredient used commercially in glue removal products imported and distributed legally under permit;

• when the offender noticed sales of her products to increase prior to 6 February 2019, she was not aware of potential for use of her products illicitly by persons who chose to do so or even that GBL or butyrolactone were ingredients which could be used illicitly by persons who chose to do so;

• the offender imported the Liquid and Gel from suppliers in South Korea whereas the Australian Federal Police and Australian Border Force Press Release of 22 December 2016 (the “Release”) warned of GBL “found concealed within commercial beauty products imported from China”;

• the Release referred to “gamma-butyrolactone” and “GBL” but not to “butyrolactone” which was the ingredient included in the writing on the bottles of Liquid and Gel;

• in the circumstances of seven years of what she understood to be legitimate trading, the offender paid inadequate, if any attention to the FB Trading Material Data Safety Sheet and product description materials made available to her by her Korean suppliers;

• in the circumstances of seven years of what she understood to be legitimate trading, the offender paid inadequate, if any, attention to the terms of her supply contracts with Eyemee which left to her the continuing responsibility to satisfying herself of the legality within Australia of the Liquid;

• as at 31 January 2019, the Korean supplier of Liquid, Eyemee, included in its invoice the information that the Liquid contained 91% pure GBL;

• as at 31 January 2019, the Korean supplier of the Gel, FB Trading, did not include in its invoice the information that the Gel contained GBL;

• prior to 6 February 2018 the offender did not know what GBL was;

• Australian Customs/Border Force did not inform the offender on or after 31 January 2019, that her shipment had been stopped for the purpose of testing for GBL;

• during her years of trading the offender had personally experienced in her business Australian Customs/Border Force stopping shipments of her products pending later notification of GST due on value and release of the shipment following the offender causing payment to be made;

• regular records of the whole of the transaction including details of customers were retained in the books of her business;

• access to the whole of the offenders business records has been acquired Australian Federal Police;

• the offender took no steps whatsoever to conceal her trading, the subject of the offending;

• following the conversation on 5 February 2019 in which Mel informed the offender that her product contained “G” the offender engaged in frantic inquiries as to whether or not she was trading illegally, not only of the Internet, family, friends, other importers and customers, but also of Australian Customs and Australian Border Force;

• Australian Customs and Australian Border Force did not respond to the offenders enquiries of them as to why her 31 January 2019 shipment had been stopped, throughout the period of the subject offending, and whilst Australian Federal Police observed her activities including by telephone intercepts of her enquiries as to the legality of importing and selling the Liquid and Gel;

• the price for which the offender sold the Liquid and Gel was “not the kind of financial reward that criminal syndicates see” (Crown closing submission: T74.47);

• the Liquid and Gel was imported regularly packaged in 15 g bottles ready for sale in the beautician business, which bottles were: marked for use and included instructions for eyelash removal, bearing “made in Korea”, branded by the offender’s suppliers (FB and Max2) and inscribed with ingredients including glycerin, aloe, vitamin E, Tocopheral acetate, sodium along with butyrolactone (the subject ingredient which was a border controlled substance);

• the bottles were not marked with “gamma-butyrolactone” or “GBL”.

• whilst the offender admits the element of commercial quantity, the portion of the Liquid and Gel imported and trafficked to persons who are likely to have intended to use the product illegitimately (that is, not as a beauty product) is unknown: T76. 08-31. The Crown concedes that there is no evidence of her customers’ actual illicit use of her products after purchase; T76.47;

• the offender did not sell the Liquid or Gel for the reason of it being put to illicit use by others: T76.45

• In the circumstances of the contract with Eyemee having been signed years before the period of the offending, her having traded with an honest and reasonable belief as to the lawfulness of her trading for 7 years, her lack of knowledge of what the chemical compounds gamma-butyrolactone, GBL or butyrolactone were; the common ground is that during the whole of the period prior to 5 February 2019, the offender was not possessed of a state of mind that there was any significant or real chance that she was importing a border controlled substance without the required permit and trafficking an ingredient which could be used illicitly.

FACTS DETERMINED ON THE EVIDENCE

13. The offender gave evidence by affidavit made 17 September 2021 and Statement (handed up) on which she was cross-examined. Her oral evidence was consistent with other evidence. Her answers in cross examination focused on transcripts of intercepts of her unguarded discussions were, in my assessment, truthful and frank. In particular, she was challenged as to her knowledge of whether or not the Liquid and Gel contained the illegal ingredient GBL.

14. The Crown submitted that during the 3 week period of offending, the offender knew that she was importing and trafficking GBL; whilst the Defence argued that importation and trafficking was performed with a state of mind of recklessness as to that fact only.

15. Fairness demands that assessment of the offender’s state of knowledge requires appreciation that when Mel, being a stranger, spoke to the offender on 5 February 2019, the offender understood her long-term business to be legitimate. Further, when Mel told her that the product contained “G” and that persons drink it, the offender knew absolutely nothing about what “G” was and nothing about GBL or GBH. She did not know that “G” was an abbreviation for GBL. At that moment of introduction of the idea that an ingredient in her products could be illicitly misused by persons, the offender was naive and not possessed of knowledge of such drugs.

16. In my opinion the extracts of transcripts of phone intercepts clearly establish that fact of the offender’s then state of mind. It is important that the offender’s reaction, to what was only an allegation by a stranger concerning her business, was to frantically enquire of whether or not there was substance in what Mel had said.

17. Relevant background to consideration of whether or not, on receipt of that allegation by Mel, the offender should have immediately appreciated that there was a significant or real chance that importing and selling the Liquid and Gel was unlawful, includes that she had been reassured over the preceding 2 years, including by police, that her product trading was legal. In October 2016 she received a large email order for glue remover from the attention attracting address: [email protected]. She was aware of the missing child Daniel Morecombe and contacted police in the hope that it might assist them. At that time the offender was also concerned by a joking comment made by one of her staff that she had read that people made the drug “ice” from the glue remover. When the offender spoke to a male officer at Narellan Police Station and told him of both of those concerns, he responded that he was not concerned about the product but interested in the email address which he would pass on to another unit. He said that police would contact her if they needed any more information. No further contact came.

18. In November 2018 the offender again telephoned Narellan Police because her receipt of large orders for Liquid and Gel caused her to become suspicious that there was a risk that persons were using them for illegitimate drug use (T44.40-T45.09). During a 10 minute discussion the offender told an officer that she was selling eyelash remover in large quantities (T46). In response to her expressed concern that she did not want to be doing anything illegal, the officer told her that she had a legitimate product and that she could not control what other people do with it. The officer gave her an example of someone going to a Bunnings store and buying chemicals or petrol and making it into something illegal: T46.40. The officer said that Bunnings cannot get into trouble for that.

19. On a couple of occasions, when large orders were placed either directly online or via telephone, the offender had asked the customers during telephone conversations what they were doing with the products. One of them had told her that it was used as a lubricant and was cheaper than the lubricant they usually purchased. This made sense to the offender because the product is very oily. Another customer told her that they use the glue remover in their Lego business.

20. In early February 2019, having become concerned that shipments were held at customs, the offender made several inquiries, including with Australia Post and UPS and was constantly told that they did not have any answers and would get back to her as soon as they knew something. During February 2019, she also emailed Australian Border Force asking for answers concerning her stopped shipments but the authority did not inform her of why her shipments had been stopped.

21. Australian Customs were releasing to the offender some shipments which contained her glue remover products and holding others. Customs was also holding shipments that contained other products including eye patches, eyelash tools and falls eyelashes. About one week before her arrest in late February 2019, the offender’s friend Ashley’s husband, Matt, informed her that over $100,000 worth of solar panel stock in his business was being held at Customs at one point and that he was unable to get answers to his inquiries as to why.

22. During the period of the offending, in circumstances of customers having pressed their demands whilst supply was limited because of the Border stopped shipment, the offender marginally increased price and profit per bottle in the opportunity of demand/supply and not from motivation of taking the risk of selling in circumstances of the knowledge of illicit trading which the Crown alleges she possessed.

23. When on 11 February 2019 the offender changed her address for delivery of imported Liquid from her home address to a post office box address, she did so at a time when she realised that there was a real chance that Customs/Australian Border Force had stopped her earlier shipment because of the ingredient GBL within the products; but she did not know that to be the fact. She did not decide to change the delivery address for the purpose of disguising an importation which she actually knew to be illicit. At that time she also considered there to be a real chance that Customs/Australian Border Force had stopped her earlier shipment because of an issue of undervaluation or GST. Her evidence in this regard is consistent with the extracts from the telephone intercept with her sister on 8 February 2019 at 12:28 PM, with a police officer friend on 9 February 2019 at 10:22 AM, with Geraghty on 18 February 2019 7:02 PM and with her contact in Korea named Dave on 20 February 2019 at 9:36 PM. In particular, whilst the address was changed the importation was otherwise conducted as identified with her business. It was easily identified with her. The placing of an order for import in a smaller quantity and to the changed address was a not suspicious trial and error test of whether the Customs/Australian Border Force problem was to do with revenue or with illicit ingredient. As she explained to undercover operative Mel on 19 February 2019 9:31 AM:

“I mean if they tell me what the problem was I would know how to rectify it but they’re not telling me so, I thought well I’ll just order some more and, um, just not as much and see what happens.”

The prior evening, 18 February 2019 at 7:02 PM she told Geraghty of her relief that the smaller shipment had not been stopped, because it meant that it was less likely that the reason of Customs/Australian Border Force had stopped her earlier shipment was because of an illicit ingredient.

24. The extracts from the telephone intercepts include the offender telling friends and business associates of her frustration that despite her contacting Customs/Australian Border Force to ascertain what the problem was with her stopped shipment, those Authorities had provided no answers or information. Indeed, the offender complained to her Korean supplier contact, Dave, of her frustration that whilst Australian authorities would not provide answers to her enquiries, he, whilst in Korea, had information. Dave’s information was ultimately wrong. He informed her that Customs/Australian Border Force had stopped her product because Australian authorities were accusing the Korean suppliers of dumping product at under value.

25. It was whilst realising that there was a significant or real chance that it was illegal to import, to possess and to sell the Liquid and the Gel, but not knowing that to be the case and whilst Customs/Australian Border Force refused or failed to respond to her enquiries as to whether or not her trade was illegal; the offender committed the importations and the trafficking which are the subject of the offences: see extracts of telephone intercepts [17], page 23, 13^th and 14^th; [18], page 24, 10^th to 13^th; [20], page 27, 6^th to page 28, 9^th; and [23], page 31, 1^st and 15^th and page 33, 2^nd.

26. The chronological starting point of germination of her thoughts is the telephone conversation on 5 February 2019 at 1:12 PM when undercover police operative Mel, who was a person unknown to the offender, sought to purchase Liquid and Gel. The offender informed Mel that she had been in contact with Customs concerning the shipment stopped on 31 January 2019 and in response to Customs request had provided paperwork but that no one at Customs, Australia Post or UPS would give her any answers. That is not the conversation which would have occurred if the offender then knew that there was a significant or real chance that her products contained an illicit ingredient when dealing with a customer purchasing for illicit drug use.

27. On 7 February 2019 3:05 PM, in a conversation with Geraghty, the offender said that Customs were not telling her anything and that she was not receiving any update on her held shipment but that Customs could apparently take up to 6 weeks, “so I don’t know whether to order more stock or not”.

24. Whilst not knowing that she was under investigation by police and prior to her arrest, the offender made an appointment to see a Solicitor for advice as to whether or not her importation and sale of Liquid and Gel was legal: T54.15.

25. I accept the plaintiff’s evidence that she retains a poor recollection of conversations extracted from the telephone surveillance because she was heavily affected by alcohol during the period of the offending.

26. Some of the conversations with her sister and persons with whom she was familiar contain banter about drug use, which in my opinion, is not of assistance in assessing the state of guilty mind of the offender in the course of the offending.

27. She was frequently reassured by people including her sister, who is her mentor, that she was running a legitimate business and doing nothing wrong. A former New South Wales Police Officer who served 11 years in the Western Sydney Command and is presently employed as an Investigator by Transport New South Wales, corroborates that prior to the period of offending, the offender on a number of occasions spoke with him of the increasing orders for the Liquid and Gel and that a customer had told her the product was used for lubricant in machinery. When the offender discussed with him a Sydney Morning Herald article concerning the Release, he advised her of his interpretation that the report concerned drugs “hidden in the eyelash glue remover bottles” and reassured her that hers was a legitimate product. Mr Hudson also recalls the offender telling him of having contacted the Australian Border Force and Narellan Police in New South Wales to seek advice from them, so as to be sure that she was not committing any offence. As to the shipment stopped by Customs on 31 January 2019, Mr Hudson recalls having reassured the offender that he had experienced imported packages being held for routine checking and being opened and inspected before being sent on to him.

28. During cross-examination the offender was unwavering in her admission that during the offending, despite her state of mind being affected by abuse of alcohol and anxiety, she was aware of a substantial risk that she was trading illegally, but that at no time did she reach a state of knowledge in which she was convinced that she was doing so: for example see T 36; 48.40-.45; 49.10-.44; 50.10; 51.05.

29. I accept as truthful the offenders description of her state of mind contained in paragraphs 127 and 145 of her affidavit made 17 September 2021. In my assessment, those statements are not inconsistent with the surrounding evidence. The plaintiff stated:

[127] [After reading the Release in February 2019]

“I had seen that it had “Gamma” Butyrolactone, and I checked my ingredients and saw that mine did not have the “Gamma” part in it. I thought then that perhaps I was not importing or supplying the actual drug, as mine was missing the word, Gamma. I was aware there was a substantial risk it was the same ingredient, but I thought that even if it was because I was, I thought, simply importing it as part of my legitimate business, it was not illegal”.

[145] “in my mind now, I know that I wasn’t thinking clearly, and that I became complacent and fed up with not knowing. I felt as though if I was actually doing something wrong, then someone would come and tell me. I became aware of the risk that the product was Gamma-Butyrolactone, however I continued to run my business, and I continued to convince myself that I wasn’t doing anything illegal.”

OBJECTIVE SERIOUSNESS

34. The Crown puts its case on the basis that the offender is a good person who made some bad decisions: T71.18. That appropriate description acknowledges the context in which the objective seriousness of the offending falls to be assessed.

35. The offender’s pleas concede for the purposes of each Count her guilty state of mind. The parties vigorously contest the criminal culpability of that state of mind. The Crown argues that during the period of offending she knew that the Liquid and the Gel she imported and trafficked were illegal and knew that they were being purchased for their illegitimate purpose (MFI 1 at [14]).

36. The central issue contested by the parties, is whether she knowingly or recklessly offended.

37. The offending occurred in the course of offender’s legitimate business of importing and selling beautician products in which all of the subject transactions were properly documented and accounted as regular commercial business by her. There was no activity of concealment.

38. Whilst the offender noticed sales of eyelash glue remover in both forms of Liquid and Gel increased from about 2018, her unchallenged evidence was that the Liquid and Gel were among her biggest selling products, with mascara products. That evidence nullifies concern that her traded volumes in Liquid and Gel were so high as to demand her attention to a market other than supply to the beautician industry. Nevertheless, in her truthful and frank manner of giving evidence, she conceded that she had some suspicions about some customers after her becoming aware of the issue of the butyrolactone ingredient from about 5 February 2019

39. The Crown says that the extracts from the intercepted phone calls “suggest that on 6, 7 and 8 February 2019, the offender seemingly tried to convince herself that she was not culpable by relying on the legitimacy of her business and seeking comfort from her friends and family (who provided their own views of her lack of culpability) however, across all the telephone discussions, the offender reiterated her clear understanding that she imported GBL and that she knew GBL was illegal.

40. The Defence fairly points to the context in which culpability of the offender’s state of mind is to be assessed. It is put (MFI 2 at [8]):

“This was an offender who for years had imported this item without issue. Others in the industry did the same. She had been taught using the product. Then suddenly she is told that there is a problem. Common sense dictates that the immediate reaction will be one of disbelief. That is the reaction she had. Although she talked about the fact that she is going to jail it is clear she didn’t really believe that, and she was assured of that by her family, friends and other suppliers.”

41. The Defence argues that the offending was committed recklessly:

• the offender was not certain that the Liquid and Gel contained GBL or whether butyrolactone was the same thing or something different but accepts that she was aware of a substantial risk that it was GBL (MFI 2 at [5]); and

• even if it be determined that the offender knew that she was importing and selling GBL, she did so in the mistaken belief that what she was doing was not illegal (MFI 2 at[6], [9] and [10]).

42. As the Crown properly stated in closing (T71.46-47): “whether the offender knew that she was importing a border control drug as distinct from recklessness. Both of them hold her liable. One may be more culpable.”

43. The state of understanding of a member of the community and in the present case the state of understanding of the offender who was educated to age 15 after repeating year 9 at school, would not be of a high level of expertise in chemistry. I raised with the parties that butyrolactone was an ingredient only. Whether it was a chemical or a compound, it was an ingredient composed within the compounds making up the Liquid and the Gel. The extracts of transcript of phone calls show that the offender had a level of awareness of presence of GBL as an ingredient in like products. But as a chemical ingredient within the product it is not as separate and identifiable as, for instance, a border controlled substance or object hidden within the lining of a piece of baggage. It was a component of the whole. The chemical make-up of similar products read about on the web might not have been identical. Whilst those telephone extracts include discussion of the illegality of GBL, that observation did not and in the discussions was not shown to bring her to a state of actual knowledge that it was illegal to import and to sell the Liquid and Gel. A matter of significance in this consideration is that the offender was during the period of offending asking Customs/Border Force why her shipment of 31 January 2019 had been seized and she did not receive an answer.

44. I find, that after years of legitimately conducting her business, during the three week period of the transactions the subject of Counts 1 and 2, the offender continued to import and to sell when she was aware of a substantial risk that her customers or one or more of them were involved in the illicit use of her Liquid and Gel. That awareness came from her own enquiries on the web of butyrolactone, inspired by the stranger, purchaser Mel (an undercover police operative) on 5 February 2019, informing her that the Liquid and Gel contained “G”. The plaintiff has conceded the full extent and character of her knowledge of that risk and I accept it at the level of awareness of a significant and real chance but not of actual knowledge. The offender never knowingly and purposefully imported for or sold to that illicit trade.

45. Armed with the offender’s business records the Crown is unable to produce evidence of the quantity illicitly used. There is no suggestion that the offender had a greater awareness.

46. Her frantic research on the web and enquiries of family, friends and customers, delivered to her a confusing inconsistency of responses and results including regular advice from an assortment of persons of that she was trading legitimately. In my opinion, it is very significant that the offender’s appropriate reaction was to seek advice from Customs/Australian Border Force as to whether or not her importation of the Liquid and Gel was legal.

47. Without intending to categorise offending by a label, I describe her role was as a legitimate business person unwittingly acting as a gateway for an unknown illicit clientele and illicit use of the Liquid and Gel. The offender is a good person who in the course of running a legitimate business stumbled into criminal conduct.

48. Whilst the evidence does show beyond reasonable doubt her appreciation was of a significant risk that importation and distribution of the Liquid and the Gel was illegal; her continuing to trade was unjustifiable and was reckless. She preferred continuing commercial trade and profit over her responsibility to the community. She should have ceased trading in Liquid and Gel until she was assured it was legal to continue.

49. During closing submissions, when the proposition was put to the Crown, it was properly conceded that the evidence was not against finding that the offender would have ceased to import and to sell the Liquid and Gel if she had been told by Customs/Australian Border Force that her products were illegal: T77.41 to T78.26. In those circumstances in my opinion, the offender’s criminal culpability deserves to be assessed as greatly mitigated in the assessment of the objective seriousness of her offending.

50. The Crown also properly conceded that the documenting of the transactions the subject of the offending, in the usual way of legitimate business portrays “the difference between a bad person and a good person in this sort of trade”: T79.40 to T80.10.

51. For application of the provisions of ss 5.2; 5.3; and 5.4 Criminal Code Act 1995 (Cth); with assistance of the trial jury directions recommended by the High Court in Smith v The Queen (2017) CLR 291; [2017] HCA 19 at [69], I find that during the 3 weeks of offending:

• the evidence does not persuade me beyond reasonable doubt that the offender knew that importation and sale of the Liquid and Gel were illegal because of the ingredient GBL;

• the offender knew or believed there was a real or significant chance that importation and sale of the Gel and the Liquid was illegal because it was an ingredient of each product; and

• when importing and trafficking the Liquid and the Gel in the transactions the subject of Counts 1 and 2, the offender was reckless as to whether or not the importation and the trafficking was illegal and it was unjustifiable for her to take that risk.

COUNT 1 – IMPORTATION OFFENCE

52. In the relevant period the offender paid $5,172.32 for 600 bottles of Gel. The gross weight was 9 kilograms, which at 81% purity, contained 7.29 kilograms of GBL. The Gel was imported from Eyemee in South Korea to the offender’s business “Masses of Lashes”: Agreed Facts at [25]-[37]. The cost calculates to $8.62 per bottle. The offender sold the product at $12.85 per bottle, discounted to $8.95 for orders of over 200. The common placement of orders in the quantities of 200 and above in the agreed facts infers that the offender probably commenced the discount in the quantity of 200. This point was not closely examined in the evidence. These facts and calculations show that the offender profited between $0.33 and $4.23 per bottle depending on the size of the order. 600 bottles represents a profit in the range of $198-$2,538 depending on the size of orders, but tending to be in the lower part of that range.

COUNT 2 – TRAFFICKING OFFENCE

53. In the relevant period the offender sold 23.385 kilograms of the Liquid which calculates to 1,559 bottles: Agreed Facts at [24]. The pure quantity of the GBL sold was 21.28 kilograms: Agreed Facts at [26]. I also note that 27 February 2019, AFP Officers on the execution of a search warrant located 1432 bottles with a pure weight of GBL of 19.54 kilograms in the offender’s garage. It is agreed that the portion of the Liquid intended to be sold by the offender to beauty businesses for legitimate use as well to be used in beauty procedures conducted by the offender’s own salon business and the portion likely to have been used illegitimately is not known. As I have observed, some customers informed the offender that they used the product for other purposes including lubricant and remover of glue from Lego. At the same cost and sale pricing as used in the calculations above in relation to Count 1, the 1559 bottles represents a profit tending to the lower part of the range $514.47 to $6,594.57.

54. I have arrived at the above calculation of profit from calculations based upon the Agreed Facts. I note the Crown Written Submission (MFI 1) at [40]-[45] and the Defence Written Submission (MFI 2) at [22] – [24].

55. That she, in all ways and most significantly in regard to profit margins, continued to trade in Liquid and Gel on normal commercial terms for supply to buyers who identified to her as from the beautician industry, identifies her criminal culpability as close to the opposite end of the spectrum for offending of these types, to that of sophisticated, intentionally criminal, commercial drug importation and trafficking.

56. With assistance of the general propositions for sentencing in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], I prefer my characterisation of the role of the offender in illicit drug trading as having unwittingly provided a gateway to intentional criminal drug trade by others, to the Crown’s submission that her criminal conduct was more extensive than that of a courier of drug packages organised by a criminal syndicate: T74.15. Bearing in mind the limitations of such descriptions of categories of participation; I observe that unlike a courier for a drug syndicate, the offender’s purpose was regular, legitimate trade in beautician products but whilst aware of a substantial risk that she was trading illegally. Her conduct was devoid of such things as accepting a task outside of her usual enterprise, like a courier receiving another person’s goods or carrying another person’s luggage. Nor did she participate in concealment or act for significant reward or incentive characteristic of the involvement, even of a mere courier, in typical criminal drug trade.

57. It is unavoidably significant that the quantity of the importation was more than 7 times and the trafficking more than 21 times plus possession of more than 19 times the threshold commercial quantity: Criminal Code Regulations 2002 (Cth) sch 4. It is relevant to assessment of her recklessness that the offender was aware that the bottles were marked as including the ingredient butyrolactone in a high percentage, and of information of GBL was available to her in the invoices and FB Trading product information. Also that her contract with Eyemee spoke of her responsibility for determining the legality of the Liquid in Australia.

58. It is the level of criminal culpability involved which distinguishes this case such that the parties joined in the description of the task of sentencing the offender as “unique”. I understood them to mean that it is uniquely different to sentencing of persons for their involvement in typical criminal drug trade. I agree with that characterisation of the objective seriousness of the offending in relation to both Counts.

59. In my opinion, the objective seriousness of the Count 1 offending is at the very low end of the spectrum of offending of that type.

60. In my opinion, the objective seriousness of the Count 2 offending is at the very low end of the spectrum of offending of that type.

GUILTY PLEAS

61. The offender pleaded guilty on 23 April 2021. The offender’s trial was listed to commence 12 April 2021. Plea negotiations had commenced on 19 February 2021. It is common ground that the offender is entitled to a discount in relation to each Count for the utilitarian value of her pleas pursuant to s 16A(2)(g) Crimes Act 1914 (Cth). Neither party made specific submissions on the measure of the utilitarian value. Discount for utilitarian value of a plea is usually determined largely by the timing of the plea so that the earlier the plea the greater the discount. I infer that there has been a significant saving of the conduct of a trial involving complexity. The agreed fact is not that the pleas were delayed because of negotiation; but rather that in the months preceding the listing for trial, when the complexity of proof would have been in consideration, negotiation of pleas continued. Other facts involving complexity of proof in the unique circumstances of the offending were mens rea and that the portion of the quantities imported and trafficked to elicit drug use persons is unknown. A trial, would potentially involve a significant number of witness being called given the telephone intercept evidence, including participants in the offender’s inquiries, including current and past police officers, Customs and Australian Border Force Officers. In my opinion, discounts of 10% are appropriate: Xiao v R (2018) 96 NSWLR 1.

SUBJECTIVE CONSIDERATIONS

62. The offender gave oral evidence of and I am satisfied that she is genuine in her expression of a deeply felt remorse. Her contrition is patently clear and genuine. She is, as the Crown properly described her a “good person” who stumbled into this offending. She feels stupid and ashamed of her offending. She is deeply concerned that her recklessness has likely caused harm to members of the community through their illicit drug use. She says, and I accept, that she would never have wanted to inflict such harm on the community.

63. Commencing about four months prior to the offending and during the offending, she abused alcohol during a period of mood swings, anxiety and depression. The offender has experienced those conditions on and off for many years. She was not medicated at the time of the offending but she had been medicated on and off according to a psychological condition, which probably commenced at the time of the tragic death of her sister.

64. The Defence subjective case was presented through her affidavit and statement evidence as well as her oral evidence, the affidavit and statement of her sister Heidi who also gave oral evidence, the affidavit of her mother, the affidavit and statement of a friend who is a retired police officer presently working for Transport Investigations, the expert opinion report of Dr Allnutt dated 8 September 2021 and a detailed letter from the treating psychologist Ms Mamo, as well as numerous testimonial letters. That evidence can be dealt with briefly because of the appropriate concessions made by the Crown in closing oral submissions.

62. The Crown does not dispute the offender’s subjective case. The Crown accepts that the process of prosecution has achieved specific deterrence. The Crown accepts that the offender’s use of alcohol at the time of the offending impaired her judgement in a way worthy of being taken into account in the general mix of assessment of her criminal culpability. The Crown disputes that the offender’s mental health issues are relevant to the assessment of general deterrence and that they weigh more heavily on her than for other offenders, in terms of hardship of the experience of imprisonment. The Crown accepts that prosecution for these offences has caused significant hardship to the offender. The Crown disputes that hardship suffered by the offender’s young adult son Mason and her young daughter Molly (approximately 10 years of age) are circumstances of significance weighing against full-time imprisonment: T70.35-T71.19.

63. The offender was principally raised by her mother until her mid-teens. Her parents had separated. When she was approximately nine years of age she was inappropriately touched by a stranger. Until the age of 12 years she lived in housing commission accommodation. Her elder sister and father bullied her and demeaned her, particularly as to her appearance. She repeated school year 9 and left school at 15 years of age. She found it difficult to learn and did not achieve good marks. In her mid-teenage she had a bitter falling out with her mother and she moved in with her father, even though her relationship with him was unsatisfactory.

64. She married in 1996 and separated from her husband in 2001, her son Mason having been born in 1998. Her daughter Molly was born in 2009 from a union with her then partner. They are now estranged. The offender suffered four miscarriages after the birth of Molly. Her relationship with Molly’s father is strained. On 5 July 2019 he filed an application for full custody of Molly. Molly has been diagnosed as suffering ADHD. All evidence and testimonials describe Molly as having suffered severely at an emotional level whilst the offender was incarcerated for 22 days following her arrest. Molly has been in psychological treatment since November 2019.

65. From the age of 15 years the offender has worked hard. The closest person to her was her sister Renee who was tragically killed in a motor vehicle crash when the offender was 18 years of age. The effect of that tragedy was exacerbated by the fact that the offender had declined Renee’s invitation for the offender to accompany her on that trip to the beach with some male friends.

66. In about 2011 the offender commenced beautician work. It started with spray tanning which grew to her business Cocoa Being. In February 2012, she completed training in the application of eyelash extensions. Her success in that particular calling lead to her establishment of her business of importing and distributing, which she called Masses of Lashes. It is in the course of this business that the offending occurred. Her businesses grew to her employing 5 staff. She purchased a home for herself and her children and traded from that home. Throughout all of her progress, her sister Heidi has been her mentor. She considers Heidi to be smarter and wiser than herself. In recent years she restored excellent relations with her mother. Her mother has also been her mentor.

67. After she was arrested, she suffered significant extra curial punishment because local media described her actions as hiding drugs in eyelash glue remover. At the time she had a local business servicing approximately 100 clients a week. As a consequence, staff decided to leave her. As a result of this prosecution the offender was forced to sell her home. Her personal and business bank accounts were frozen. Police seized her computer, phones and an iPad. She moved house twice following her release from remand and is presently living with Heidi and her daughters. She continues to run her business and pay her bills, including legal expenses. She is unable to afford her own psychological therapy but did so previously for a period of 10 months. She affords her daughter’s, Molly, psychological treatment. Since 30 October 2019 the eyelash glue remover in her stock is GBL free. When customers contact her insisting on her original glue remover, she conveys those requests to police. When she located the GBL free product she asked the Officer In Charge to collect the first shipment and have it tested. She did not trade in it until police gave her clearance to do so. In this way, whilst she has not repaired injury caused by her offending, she has taken action representative of her contrition.

68. The offender has no antecedent criminal history; but the circumstances of her offending were promoted by her good character and standing in the community, other than to the extent that she operated a legitimate business in beautician products.

69. It is common ground that the offender is fully rehabilitated and, to the extent that I have already described it, there is no dispute that her incarceration will have a highly distressing effect on her family and in particular on her daughter Molly who remains under psychological management for her ADHD/autism spectrum mental health issues.

70. The offender suffered significant anxiety when incarcerated for 22 days following her arrest. I am satisfied that she has learnt the lesson. I accept her belief that she will not reoffend. That belief is supported by Dr Allnutt (so long as she maintains her mental health plan) and shared by all persons providing testimonials including a past police officer and friend.

71. The evidence in the sentencing hearing is overwhelmingly that that the offender’s sister, Heidi, her mother, friends (including past and serving police officers) and business associates, reassured her that she was not trading illegally. This is corroborated by her sister Heidi, her mother and her friend, the past police officer. In her affidavit at [13] and Heidi said:

“[The offender] had started drinking during the early hours of the day to ease her thoughts and anxiety. Drinking to the point of losing her memory a lot, and spending most of her day in bed. On a few occasions [she] could not remember conversations we had the previous day. Early one afternoon I went over to [the offender’s] home as I knew she was struggling emotionally and I wanted to get her up and motivated. I found the kitchen littered with vodka and wine bottles and [the offender] in bed. This was so out of character for [her] and it worried me to see her like this.”

75. Heidi said that she thought the offender’s talking of going to jail was her not uncommonly “drama queen” approach to issues and that she was making a “mountain out of a mole hill” regarding the eyelash glue remover (Liquid and Gel). Ultimately, it was a cousin who was a serving NSW police officer, who recommended the solicitor with whom the offender made an appointment to discuss the question of legality of her trading, just prior to her arrest.

76. Dr Allnutt reports that the offender suffers high blood pressure, hypercholesterolaemia and lupus anticoagulant inhibitors disorder. In his opinion Justice Health could meet the offender’s medical needs including psychological needs during incarceration but he notes that this did not occur during the 22 days of her remand. He diagnosed the offender to suffer mood and anxiety disorder characterised by episodes of depression. In regard to the time of the offending, Dr Allnutt commented:

“My view is that further stressor is related to work, her business and in the time leading up to the period of the offending a breakdown in relationship with her close friend, something to which she would have been emotionally vulnerable (given the loss of her sister) and again aggravated her depression. She increased her alcohol consumption to significant amounts… In my opinion she had an alcohol use disorder with an underlying depressive condition during the period of the offending and this would have affected her judgement for that offending period.”

77. In the Sentencing Assessment Report dated 17 September 2021, the Community Corrections Officer observed that the offender accepts responsibility for her actions and acknowledges that she should have ascertained the reasons for the increase in product demand when she became suspicious of misuse of the product in February 2019. In keeping with all other evidence, the Officer recorded that the offender has significantly reduced her alcohol consumption, is willing to engage in psychological intervention and demonstrates empathy and insight into the impact of her decisions on the greater community. The officer does not recommend any conditions other than supervision. She assessed the offender is suitable to undertake light duties community service work although no such work is presently available due to the pandemic restrictions.

78. Dr Allnutt concluded that due to her psychological vulnerability, the offender “will experience hardship while in custody as compared to an able minded inmate.”

79. She is assessed both by the Officer and by Dr Allnutt as to be of a low risk of reoffending.

80. What might be termed “hardship” experienced in her early years, does not, in my opinion, have significant bearing on her moral culpability. This is because; the offender was a good person and successful business person whose conditions of anxiety, depression and mood disorder had been controlled including by medication, when required throughout life. However, the unchallenged opinion of Dr Allnutt, strongly corroborated by the numerous testimonials and the evidence of her sister and mother, establishes that the offender’s mental health vulnerabilities in combination with intoxication at the time of the offending was out of her regular character and behaviour. I do accept and it is agreed, that her criminal culpability was diminished, in regard to the degree of deliberation involved in her breach of the law: R v Coleman (1990) 47 A Crim R 306 at 327. The Crown concedes this.

81. I am not satisfied on the evidence that the offender’s mental health conditions, if treated by Justice Health as it is expected would occur in the event that she serves full-time imprisonment, is a hardship moderating serving such a term. The significant distress which would be suffered by the offender’s children and in this case, her daughter Molly, is not a hardship beyond that to be expected of the sad effect upon children when their parent is incarcerated.

SYTHESIS

82. That the scale of the anticipated reward was normal commercial profit margin in legitimate importation and sale of beautician products is relevant to considerations of deterrence, both specific and general. In Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50 at [34] the Court said:

“As has often been said, the sentence to be imposed for a drug importation (or trafficking) offence must signal both to the offender, and two other would be offenders, that the potential financial rewards to be gained from such activities are outweighed by the risk of severe punishment. Obviously enough, the greater the anticipated reward, the more powerful the deterrent message must be. The converse is also true.”

83. In this case, the Crown accepts that the process of this prosecution has achieved specific deterrence: T70.45. To this I would add that she has suffered the extra curial punishment of publicity which identified the offender in the community and I am informed exaggerated her criminal conduct by characterising as hiding GBL in beautician products.

84. The statutory goalposts indicate the seriousness with which the community regards importation and trafficking of illicit substances. One can readily understand the Commonwealth’s concern that persons, who like the offender, set up a home spun importation and sale business and who may not be well resourced for knowing the illicit uses to which chemical ingredients of the products which they bring into the community can be used by those of criminal intent, be aware of their responsibility for that risk of their trade. The difficulty of detecting importation and trafficking offences, and the great social consequences that follow suggest that, in most cases, deterrence is to be given primacy on sentence and that stern punishment will be generally warranted (Nguyen at [72]). That difficulty of detection is a real factor of concern for the community when the illicit substance is unwittingly or recklessly imported by a legitimate business and then illegally traded and consumed in the after-market.

85. The parties’ joint description of the offending in this case as “unique” properly distances sentencing of the offender from that of the professional, criminal drug trade. The correct approach to sentencing of the offender is to bear in mind individual justice. Every offender is different and criminal justice is necessarily individual. As was observed by Grove J with whom the Chief Justice and Sully J agreed in R v Ponfield; R v Scott; R v Ryan; and R v Johnson (1991) 48 NSWLR 327; [1999] NSWCCA 435 at [37]:

“So to say is not to deny that inconsistency in sentence is a badge of injustice nor to deny that the issue of and the adherence to guidelines are compatible with striving towards ideals.”

86. In this case, it is very important that the sentence be in the measure of the criminality of the offender in the steps which she took in the course of her offending (Nguyen at [72]). I have found those steps to have been recklessly taken in the course of her otherwise legitimately run business, without personal criminal planning and without profit representing criminal level of gain.

87. Whilst bearing that in mind, most involvements, at any level, in drug importation and trafficking attract a significant sentence, otherwise the interests of general deterrence are not served. Prior good character is generally to be given less weight as a mitigating factor on sentence (Ngyuen at [72]). Nevertheless a significant factor, in my assessment is that she historically and specifically during the period of offending promptly enquired of NSW Police and Customs/Australian Border Force as to whether or not she was trading illegally.

88. In Robertson v R [2017] NSWCCA 205, when sentencing for NSW offences of supply of prohibited drugs, Simpson JA at [50] said:

“…[I]t may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing ‘to a substantial degree’, a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives.”

89. Further to that observation, her Honour ultimately determined (at [98]) that there is no judicial prescription mandating stern punishment in the form of full-time imprisonment which can airbrush out consideration of judicial prescription of individual justice according to the exercise of discretion in the synthesis of sentencing.

90. The guideline judgement Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 endorsed the approach that in the ordinary case of substantial drug supply a sentence other than full-time imprisonment will fail to meet sentencing objectives of deterrence required in drug supply cases; nevertheless sentencing judges should exercise their discretion in accordance with ordinary principles: at [107]-[115]. At [113]: The Court agreed with the approach of Simpson JA in Robertson’s Case Supra. At [95] the Court explained that there is nothing in s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) directing a sentencing judge on having reached an assumption that there must be a full-time custodial sentence; then, not to enquire whether there are exceptional circumstances that would justify a non-custodial means by which the sentence may be served. The provisions of s 17A Crimes Act 1914 (Cth) render that approach no less applicable. Indeed, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the sentencing option of imprisonment with a direction that the offender be released on entering a recognisance upon giving security is available where the sentence to imprisonment does not exceed three years. That is not an option for sentence available under the NSW CSP Act.

91. Neither party referred to Robertson or Parente in submissions; nor did they need to do so given that the facts of this case do not involve an offender who’s conduct would be fairly described as purposeful drug dealing of a substantial degree. In the present case, sentencing must be according to the principles set out in the Crimes Act 1914 (Cth). That the Court must not sentence the offender to imprisonment, unless the court, after having considered all other available sentences, is satisfied that no other sentence other than full-time imprisonment is appropriate in all the circumstances of the case: s 17A. The parties agree that the s 17A threshold is crossed.

92. The Crown ultimately submits that the only appropriate sentence is one of full-time imprisonment and specified non-parole period: that is, a term of in excess of 3 years. The Defence submits that whilst imprisonment is appropriate, in the exceptional circumstances, the sentence imposed would be of three years or less to be served other than by full-time imprisonment. The Defence submits that the Court proceed by ICO pursuant to s 20AB(1AA)(a)(ix) Crimes Act 1914 (Cth).

93. The GBL imported and trafficked by the offender caused no less harm in the community because the offender did not want to cause that harm. The drug caused no less damage to those who illicitly used it because it was imported and distributed in a legitimate business. The importance of general deterrence must, in my opinion, be considered to be of significance. I agree with the Crown’s submission in this regard. Responsibility for the importing and distribution of illicit substances, when conducted by home spun, small legitimate business people, must rest with them. Whilst the statutory goalpost for sentencing for offences of this type are in part extremely high in contemplation of sophisticated, criminal syndicate operations which are difficult to detect; so, Australian Customs/Australian Border Force could not possibly be expected to detect, test and approve every substance and item imported into the country by businesses.

94. There is no judicially determined starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve as imprisonment before release on a Recognisance Release Order under s 20(1)(b). In determining the sentence to be passed, or order to be made, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence: s 16A(1); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [24]. I have in these reasons, taken into account the matters listed in s 16A(2).

95. In the unique circumstances of the offending, application of the principle of “totality” is significant. This is particularly so because “the need to ensure that the person is adequately punished for the offence” (s 16A(2)(k)) requires application in regard to an offender who is a good person who stumbled into the offending.

96. In Parente supra at [117] the Court approved from the judgement of Howie J in R v Zamagias [2002] NSWCCA 17 at [28] his Honour’s statement that a court in the exercise of choosing an alternative to full-time custody “cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment.”

97. In TheQueen v Pham (2015) 256 CLR 550; [2015] HCA 39, the need for sentencing consistency throughout Australia (see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [47]-[57]) was applied to a sentence appeal involving a “courier” type offence. The Court repeated its earlier emphasis that the task of sentencing is not met by fixing a place on a scale based on statistical analysis characterising the offending according to such things as “courier” or “principal” (at [34]), weight of the drug (at [35]); but analysis of comparable intermediary appellate courts of Australia may provide “yardsticks” that may serve to illustrate (although not define) the possible range of sentences available (at [29]). In this case, the parties informed the court that no case law provided such assistance in the task of sentencing the offender because of the “unique” circumstances of her offending.

89. A review of decisions across the jurisdictions of Australia, confirms that it is highly exceptional for offending within the spectrum of Counts 1 and 2 types, for a substantial sentence of full-time imprisonment not to be ordered.

90. The plurality in Pham supra at [35] repeated the following from Wong v The Queen (2001) CLR 584; [2001] HCA 64 at [31]:

“[T]here will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved. Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.”

100. The Court again rejected “any idea of a judicially constructed assessment of the relative harmfulness of the different kinds of narcotic substances” because the legislative scheme recognises the financial rewards available from dealing in illicit drugs and differentiates between them, such as in the present case where the offending involved “commercial” quantities (at [36] and [44]).

101. It is a special circumstance that except for the 22 days of imprisonment following her arrest, any period of incarceration would be the offender’s first experience with full-time imprisonment.

102. I agree with the observation jointly stated by the parties that (except for applicable principles) little assistance as to the orders for sentence can be found in sentences imposed in the states and territories of Australia. Notwithstanding a thorough investigation of appellate and first instance decisions from all Australian jurisdictions; for example; R v Nozhat (No 2) [2019] ACTSC 81; R v Nozhat (No 3) [2019] ATSCC 160, R v Le; R v Chanthavong [2020] NSWDC 625, R v Bittencourt-Silva [2019] NSWDC 80, Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270, Luong v Director of Public Prosecutions; Nguyen v Director of Public Prosecutions (Cth) (2013) 46 VR 780, [2013] VSCA 296, R v Claro [2019] NSWDC 886, DPP v Brown [2017] VSCA 162, Halac v R [2015] NSWCCA 121, R v Nakash [2017] NSWCCA 196, Le v R [2017] NSWCCA 26. I have been unable to find case law of substantial assistance toward determining the length of imprisonment, imposition of alternative sentences, or fines.

103. In R v Nozhat (No 2) [2019] ACTSC 81; R v Nozhat (No 3) [2019] ATSCC 160, the offender pleaded guilty to a charge of attempting to import 279kg of 3,4-methylenedioxymethamphetamine(MDMA) (s 307.1(1) Criminal Code Act 1995 (Cth)) which was hidden in containers of chlorine. The offender had agreed to import the chlorine for a pool cleaning business under his name, but for his associate. He was reckless and did not have actual knowledge that he was importing a prohibited substance. Despite the large quantity of the prohibited drug (over 550 times the minimum commercial quantity), His Honour assessed the objective seriousness of the offending to be in the low range, with his Honour sentencing the offender to a period of 3 years 7 months imprisonment, with a non-parole period of 1 year and 10 months. In my view Nozhat is distinguishable from the present case because, in that case the offender complied with direction of his business associate, such as would provide a disguise or anonymity of that person. The offending there was more like an incentive to operate blindly in the purported set up of a new importing business. In the present case, the offending occurred in the otherwise routine operation of what was known to be a legitimate way to trade of 7 years standing.

104. I disagree with the Crown’s submission that the criminality of the offending warrants sterner punishment than, for instance deserved of a drug courier. That general proposition defies the vast range of criminality of couriers. Recently, in R v Le; R v Chanthavong [2020] NSWDC 625, Colfax DCJ sentenced drug couriers who did not know what was in the package in regard to which one of them gave his address for delivery and for which one was paid $5000 and the other “an amount less than that”. No such criminally sized fee or purpose to act for another was involved in the subject offending. Here the offender was the hands-on controller of the operation, but that operation was her regular business.

105. In my opinion, the very low range objective seriousness of the offending in each of Counts 1 and 2 involved recklessness within the commercial operation of her otherwise legitimate business whilst ignoring her responsibility for making herself aware of the legality of the products she imported and trafficked.

106. The offending occurred in the context of the offender’s reasonable belief in the legitimacy of her business activities being brought to her review by Mel’s statement that the product included “G”, then Internet research; but whilst met with the reassurance of family, friends, business associates and persons known to the offender as police officers; that she was trading legitimately. Unlike, for instance, the circumstances considered in the first instance decision in R v Nozhat (No 3) ACTSC 160; the offender had experienced Customs hold-up of prior shipments on the basis of issues of revenue such as GST. Other traders confirmed their similar experience. The shipment held up was no different to those which had been legitimately traded for seven years.

107. Importantly, the offending here is also distinguished from the circumstances which more often come before courts because, in the context of regular business operations, the offender did in fact enquire of Customs/Australian Border Force as to why her shipment had been held up. That was the proper thing to do and not equal to the offending of someone who chose to proceed with a “blind eye” without making such inquiry. Those authorities, which were in the process of investigating prosecution of the offender, including a by undercover operative Mel, did not respond to the offenders enquiries.

DESIGN OF SENTENCE

108. Pursuant to s 68 of the Judiciary Act 1903 (Cth), the provisions of s 53A of the CSP Act are picked up and available in the present case. Were I to order a sentence of full-time imprisonment, it would be appropriate to sentence by way of a single aggregate sentence plus fines, in circumstances that the importation and trafficking, whilst separate offences, occurred in the one commercial undertaking of import and distribution within the offender’s business.

109. In my opinion, mindful of the additional penalty of fines, the appropriate indicative sentences taking into account 22 days imprisonment already served, after discount for the pleas of guilty would be:

1. in relation to Count 1 - the importation offence: 1 year and 7 months to be served substantially on recognisance; and

2. in relation to Count 2 - the trafficking offence: 1 year and 9 months to be served substantially on recognisance.

110. In my opinion the full-time imprisonment before release to recognisance of an appropriate sentence, would be only 6 months.

111. Pursuant to s 16C Crimes Act 1914 (Cth) before imposing a fine, the Court must take into account the financial circumstances of the person; however the Court is not restrained from imposing a fine because the financial circumstances of the offender cannot be clearly ascertained. The evidence shows that the course of the prosecution, including the facilitation of extra curial punishment by media, has resulted in the offender losing her salon business, losing the amenity of long term employees, freezing of her bank accounts and handing over to AFP her computers and business records, as well as incurring of significant legal expenses whilst receiving diminished income. In the result, while she is able to continue to trade, the financial consequence of her offending has been such that she was forced to sell her family home and she has, with her children, moved in with her sister. There is no evidence of her present earnings but she has been able to pay her bills as and when they fall due.

112. The appropriate sentence would be a fine of $3,000 in relation to Count 1 and a fine of $7,000 in relation to Count 2, bearing in mind the principle of totality in addition to an aggregate term of imprisonment for 2 years and 6 months.

113. The circumstances which properly characterises her criminality, are those repeatedly observed in these reasons to this point, being recklessness for the relatively short duration of 3 weeks in the course of an otherwise legitimate business; the recklessness being a failure to meet her responsibility to check that products she imported into Australia and distributed within Australia did not contain a controlled substance and were not illegal to import. There is no evidence before me as to whether or not the offender would have been permitted a permit for the importation, had she applied for it; nor of what the conditions, if any, of such a permit would have been. The question of permit therefore is of little assistance, except to acknowledge that GBL can be legally imported under permit for commercial applications as a glue remover.

114. Just as I have, in response to the Crown’s reference to the role of drug couriers, distinguished the offending from that typically encountered in drug importation and supply cases; I consider it wrong to characterise it as a “white collar crime”. Unlike what is usually termed as “white collar crime” the offender’s conduct was not based in dishonesty, or motivated by greed for a criminal level profit margin.

115. However, it is informative to observe in the present circumstances that general deterrence is a primary influence in the design of an appropriate sentence in white collar crime also. See for instance Director of Public Prosecutions (Cth) v Gregory – (2011) 34 VR 1, [2011] VSCA 145 at [51] to [61]. White collar crime such as tax avoidance considered in Gregory’s case, like drug importation and trafficking is difficult to detect and if undetected may produce great rewards. At [53], the Court of Appeal, Supreme Court of Victoria observed:

“…’Deterrence looms large’ as the present process of self-assessment reposes on the tax payer a heavy duty of honesty. Moreover, general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit-seeking individuals who can weigh the benefits of committing a crime against the costs of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration.”

116. I found against the Crown submission that an increase of profit during the 3 weeks of offending was the offender’s attempt to achieve reward for the risk of offending. I was not satisfied of that beyond reasonable doubt. Indeed, on the evidence of limited supply but pressing demand whilst her import shipment was held up, I accept the offender’s evidence that it was a mark up in proportion to those commercial conditions only. That said, in this case, like the tax offence in Gregory’s Case, the statutory scheme places a heavy duty on the individual importer. That duty is to ascertain whether or not the product imported for distribution contains border controlled substances. Unlike much white collar crime, including a common case of tax avoidance, the offending here did not involve sophisticated planning and concealment. Like commercial crime, she pursue continuation of trade over her lawful responsibility to assure herself that her products were legally tradeable.

117. The deterrent effect of sentencing was the subject of a Commonwealth Parliamentary Business Committees Senate Committees Senate Standing Committees on economic, criminal, civil and administrative penalties for white collar crime Report. Included in chapter 4 of that report is consideration of submissions from interested and informed stakeholders. At 4.1.3, the Committee reported that all regulatory and enforcement agencies argued for the importance of penalties in deterring white collar crime and misconduct. The ACCC, submission included that “penalties achieved must outweigh the gains that business obtain…” Some submissions supported the deterrent effect of custodial penalties. Whilst others argued that prison was rarely an appropriate or proportionate response to white collar crime, and some also argued that it wasn’t an effective deterrent, paragraph 4.20. At 4.30 to 4.32, submissions by CDPP, AFP and ASIC supported proportionate and dissuasive criminal penalties and that imprisonment provides a powerful deterrent to white collar criminals. At 4.34, the submission by Dr Overland was reported as noting that “jail, fines and restitution are not mutually exclusive…for the majority of white collar crimes, there are fines that can be imposed in addition to the imposition of a jail term, and sometimes there is an emphasis of one over another.” At 4.44, the submission from Queensland Law Society, which in my opinion expresses relevant considerations for a case such as the present which involves ignorance and recklessness in the course of an otherwise legitimate business: is recorded as including “…in many instances white collar crime arises through ignorance, performance pressure or poor decision making, and in such circumstances, and unless there is a physical threat to the community, imprisonment is unlikely to achieve the objectives of sentencing. Alternatively, non-custodial sentences, including community service orders, are likely to be more appropriate, and far less costly to the tax payer…non-custodial sentences can be used in conjunction with fine and compensation orders to enhance deterrence.” The context here is that illicit drug use causes devastating illness and death.

118. Sentencing by the alternative of Intensive Correction Order (s 20AB(1AA)(ix)), for which the offender argued, deserves careful consideration, particularly in regard to the importance of provision of general deterrence. I have the benefit of the Sentencing Assessment Report and the substantial subjective evidence. The paramount consideration of community safety and whether full time detention is more likely to address the offender’s reoffending (s 66 CSP Act) is readily relieved. The Crown joins with the offender’s submissions that she is already rehabilitated and all of the evidence speaks that her recidivism risk is low. The community would benefit from her continuing to operate her business, legitimately. Prior to her arrest, she employed 4 or 5 people from her local community in that business. The CCS Officer who authored the SAR considers that no conditions other than a supervision condition are required. The psychologist recommends that she comply with a mental health plan. The offender has displayed her compliance with the legal consequences of her offending during the 2 years, 7 months and 8 days of her bail.

119. An ICO is a form of imprisonment: R v Fangaloka [2019] NSWCCA 173 at [44]. It has the capacity to operate as a substantial punishment, but can also reflect a significant degree of leniency because it would not involve immediate incarceration in addition to the 22 days on remand already served.

120. Presently the pandemic environment requires consideration of the special circumstances of health risk to the community, cost to the community, limits of resources of Corrective Services NSW and hardship upon the offender should she be incarcerated. Acting Commissioner Corcoran, Communities and Justice, recently confirmed for the Court those particular difficulties, costs and that hardship. He reported that international experience has shown that when a single infected person enters the prison system, widespread transmission will occur unless strict controls are in place. In these circumstances, the rate of transmission in prisons has exceeded that of the community. The risk of transmission within the prison population including to Corrective Services Offices and then into the community is heightened. Presently, NSW correctional centres have remained mostly COVID free through the expensive and rigorous precautions taken by Corrective Services NSW. Especially in rural and regional locations staffing resources are limited. New inmates are quarantined on reception for 14 days. In the event that they are to be transferred out of a metropolitan facility they undergo quarantine again. Movement of inmates across correctional centres is generally limited. In the event of infection of an inmate there is significant isolation likely to be involved. In person social visits for inmates are under suspension. Only video visits remain available.

121. In my opinion, sentence by way of ICO, after taking into account 22 days already incarcerated and discount for pleas, for a period of 2 years 6 months and imposition of fines of $3,000 for Count 1 and $7,000 for Count 2 meets the importance of general deterrence and sentence designed according to individual justice in the unique circumstances of the offending in each Count. The sentence will provide appropriate denunciation and punishment whilst protecting the community and will ensure the offender’s compliance with a mental health plan. The fines I impose, considered against the remuneration earned during the offending, in combination with the ICO, should send an important message to persons importing and distributing products that criminal consequence including condign punishment follows failure to comply with their responsibility to ensure that they do not import or traffic, in the course of otherwise legitimate business, border controlled substances.

122. In those circumstances, in my opinion, it is appropriate to proceed by way of ICO and fine.

ORDERS

1. The offender is convicted of Counts 1 and 2.

2. The offender is sentenced to a term of imprisonment of two years and 6 months to be served by way of an Intensive Corrections Order.

3. The mandatory conditions are imposed.

4. The following additional conditions are imposed:

1. The offender is to advise Community Corrections of any changes in her address or contact details and any significant changes to her circumstances.

2. The offender is to comply with all reasonable directions toward rehabilitation or mental health treatment including, as to alcohol use and/or abstention from alcohol use given by Community Corrections Service.

3. The offender must telephone the Campbelltown Community Corrections Office on or before 3 November 2021 to receive instructions about her obligations.

5. In further sentence for Count 1 I impose a fine of $3,000.

6. In further sentence for Count 2 I impose a fine of $7,000.

123. Note: If the offender fails to comply with a condition of the ICO, a sanction can be imposed by the Commissioner of Corrective Services or the State Parole Authority. Sanctions can include a formal warning, imposition of more stringent conditions, a requirement that the offender serve a period of home detention or revocation of the ICO. If the ICO is revoked the offender will be required to serve the remainder of her sentence in full time custody unless the State Parole Authority directs that the sentence be served by way of home detention.

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Endnotes

Decision last updated: 28 October 2021